By Harold Moskowitz
You are relaxing at home. Two men are kicking in the kitchen door at the rear of the house. What can you legally do to protect yourself? You own a “legal” firearm. Should you consider using lethal force to protect yourself? The answers to those questions will largely be determined by the laws of your state even though the Second Amendment provides the right to use firearms for self-defense.
Our laws governing self-defense are based upon English common law. In the 1600’s, English common law viewed a man’s home to be his “castle” which might need to be defended. However, every life had value. Before using lethal force, a man had a “duty to retreat” from the threat of physical harm if possible. Thus, English common law resulted in the “Castle Doctrine” for protection within one’s home along with the goal of trying to prevent the loss of human life.
The Castle Doctrine gives the legal right to defend one’s home against an intruder while allowing a defense of justifiable homicide. The homeowner is not required to retreat before using lethal force. In the 1980’s, some states expanded the doctrine to cover physical threats to occupants of a car, workplace, or place of business without a “duty to retreat.”
The Castle Doctrine may not be used as defense against a charge of murder or manslaughter if the defender was engaged in an unlawful activity at the time of the homicide. Likewise, lethal force can only be justified if the intruder entered the premises for the purpose of committing a felony. The intruder must not have been invited into the home for any reason. A defender who initiated or provoked the situation which resulted in the homicide may not use the Castle Doctrine as a defense. In addition, lethal force is not justifiable if the physical threat is diminishing. The idea of justifiable homicide is based on the premise that the killing of a person did not involve “malice” or “criminal intent.”
At least twenty-four states allow for justifiable homicide in the face of an imminent physical threat without a duty to retreat. New York requires a full duty to retreat before a person may use lethal force in home self-defense. Some New York prosecutors might possibly want to have recorded proof of a call to 911 on which you can be heard warning the intruder through a locked or barricaded door that you were armed and prepared to use lethal force if he persisted. A person might even be expected to flee from the premises to retreat from the threat. In fact, New York law prohibits the use of deadly force if it is known “with certainty” that an intruder can be avoided by retreating.
California allows the use of lethal force only for protection of the home’s occupants from physical danger. Prevention of theft of personal property is not covered. Other jurisdictions with limited or no Castle Doctrine self-defense protections include: Idaho, Iowa, New Hampshire, New Mexico, Pennsylvania, South Dakota, Vermont, Virginia, and Washington, D.C. Eastern seaboard states with very restricted ability to use lethal force include: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, and Rhode Island. Not surprisingly, many of these states also have very restrictive gun control laws.
Florida and Texas have very strong Castle Doctrine plus “standyour-ground” protections. The latter form of protection provides the right to self-defense in any location where a person has a legal right to be. Other states with strong self-defense protections include: Alabama, Arizona, Georgia, Indiana, Kentucky, Louisiana, Montana, Nevada, Oklahoma, South Carolina, Tennessee, Utah, and Washington.
Texas allows lethal force for protection in homes, cars, places of employment, or business locations whenever an intruder has unlawfully entered, or is attempting to enter by using force. It also allows such force for protection when an intruder is attempting to remove someone from the protected areas by force or is attempting to commit a crime such as rape. No attempt to retreat is required. Texas as well as a few other states protect citizens against civil lawsuits arising from force used for defense of themselves and others in protected locations. Florida also has strong self-defense protections. In addition, unlike other states, in Florida the “dwelling” where self-defense has ended in homicide does not even need to have a roof. It can be movable and can be as temporary as a tent.
It is advisable to periodically check with lawyers licensed in the states where you own property. State laws can change at any time. Be informed before you need to pull the trigger!